1For a somewhat broader analysis of this issue, one which takes into account additional halakhic literature, see the Appendix, “Quality and Sanctity of Life in the Talmud and the Midrash.”
1. Maimonides (Rambam), Mishneh Torah, Hil. Yesodei Hatorah 5:1.The following review of halachic literature is intended to present the Talmudic references that established the constructs Rav Moshe applied in his responsa on critical-care medicine.
The Talmud in Sanhedrin 37a emphasizes the sanctity of the life of the individual human being by equating it with that of the human race as a whole. "To save one life is tantamount to saving a whole world." Life is thus of infinite worth. The saving of a life takes precedence over all Torah prohibitions except adultery, idolatry, and murder. Except for the mitzvah to sanctify Hashem's name, which may require the forfeiting of one's life. In all other circumstances, preservation of life takes precedence over other ethical and moral considerations. The obligation to save a life applies to the individual himself. It becomes the ethical basis of medical care. When ill, a person must seek medical care in order to find a cure. Nothing can be done to shorten a life. Thus euthanasia is murder, according to Jewish law, however noble the motive. Withdrawal of hydration and nutrition is viewed in Jewish law as active euthanasia because of the inevitability of death.
In the responsa of Rav Moshe, a thread of compassion weaves its way through the analysis, indicating that at times treatment should be withheld and life not prolonged. As Rav Feinstein emphasized over and over again, the validity of a teshuvah is based upon the accuracy of its source material. What is the source material that allows us to question the concept of sanctity of life? Some decisors, not generally recognized as poskim but respected greatly by their own groups, such as some of the Chasidic Rebbes, have in practice demanded that everything be done to prolong life, if only for minutes, even in the cases of terminal patients suffering intractable pain. Thus, patients are resuscitated by electric shock even though the heart beats for but minutes thereafter, and the electric shock is repeated numerous times before the heart no longer responds. In his responsa Rav Feinstein makes it clear that this may be forbidden, for such patients are surely in the category of goses, and the halachah demands that no aggressive, invasive contact be made with such patients. In the next few sections I present the relevant Talmudic and Midrashic sources making up the construct that sanctity of life presumes a minimum quality of life, and that intractable pain in the case of a terminal patient is reason for not taking any measure to prolong the dying process. "Fighting for the last breath" is not a halachically valid formulation of critical-care medicine.
Kesubos 77b
Rebbe Yehoshua ben Levi is recorded in the Talmud as one of the greatest of the tzadikim in an era of tzadikim. A miraculous tale is told to teach a lesson. R. Yehoshua ben Levi was often in the company of angels, among them the Angel of Death. He once asked the Angel of Death to show him his place in Gan Eden. On the way there, Rebbe Yehoshua asked the Angel of Death for his sword, stating that the sight of him holding his sword was frightening. When Rebbe Yehoshua was shown his place in Paradise, he jumped in and took an oath that he would not leave. The Angel of Death appealed to Hashem, who decided that since Yehoshua ben Levi, the great tzadik, had never taken a vow or an oath and then abrogated it, he should not be compelled to do so now.
When the Angel of Death pleaded for the return of his sword, R. Yehoshua ben Levi refused, since without the sword death would be banished forever. Hashem interceded and instructed R. Yehoshua to return the sword, since "mortals have need of it." The sword—or, let us say, the scythe of the "Grim Reaper" in modern imagery—is needed when life becomes so burdensome that death is preferred.
Kesubos 104a
The death of Rav Judah the Prince, known as Rebbe, the compiler of the Mishnah, is described in Kesubos 104a. When Rebbe fell mortally ill and was in great pain, the students at the yeshiva prayed for his life to continue. His maidservant, who in another place in the Talmud is credited with great wisdom and Talmudic knowledge, saw his anguish, and prayed for the angels to receive Rebbe, and his students' prayers to be rejected. She went so far as to disturb their prayer by tossing an urn in their midst. With their prayer silenced, Rebbe's soul rose to Heaven. The Talmud records this in praise of the maidservant's wisdom. There is a time for prayer to stop. There is a time for the soul to return to Heaven.
Nedarim 40a
The Talmud records an incident in the academy of the great Rebbe Akiva. One of his disciples took ill and, in a strange breakdown of the mutual respect and concern that normally typified Rebbe Akiva's Academy, none of the other students visited their sick colleague, as noted in the Gemora (Yevamot 72b) that attributes the terrible plague that decimated the academy during the days of Sefirah as due to the breakdown in human relations. Rebbe Akiva went to visit him and was of such help, that the student stated that the visit had saved his life. When Rebbe Akiva returned to the academy, he rebuked his students, saying that he who does not visit the sick "is as one who sheds blood."
Rabbenu Nissim, in his commentary on the Talmud, now printed in the margins of our Gemoros, analyzes Rebbe Akiva's statement in order to glean whatever halachic information may be derived from the story in relation to that of Rebbe's death. Rebbe Akiva rebuked his students as follows: "You could have gone and been of help to him. You could have prayed for his recovery. If you had found him in a state of great pain and there was no hope for his recovery, you could have prayed for his speedy death." Rabbenu Nissim thus establishes, in unequivocal terms, that there is a time to pray for a person's death. Surely, that is not a time for resuscitation. It is not a time for heroics to prolong life by minutes or days.
Avodah Zarah 18a
Rav Chanina ben Tradyon was burned at the stake for teaching Torah publicly, in violation of a Roman decree. The executioner, as an additional cruelty, wrapped Rav Chanina in a Torah scroll and placed wads of wet wool on his chest to prolong the dying process. When Rav Chanina's students urged him to open his mouth and breathe in the flames in order to hasten his death, Rav Chanina refused. "No, I cannot do that. Let the One who gave me my life take it away, for it is forbidden to injure oneself." The executioner, hearing this exchange, realized how great a man his victim was. In an act of contrition, he asked Rav Chanina's permission to remove the wads of wool and wanted to be credited with a meritorious act for doing so. Rav Chanina agreed and even swore that this executioner would have a place in the World to Come.
The distinction between opening one's mouth and breathing in the flames and removing the wads of wool is quite obvious. Opening the mouth is an act of euthanasia. Removing the wads of wool is cessation of a treatment that prolongs the dying process. That is permitted and, indeed, is considered a meritorious act.
Ta'anis 23a
The Talmud records the strange tale of Choni the Circle-Drawer, who slept for seventy years. Choni was a great tzadik whose relationship with Hashem allowed him, "like a child dealing with his father," to draw a circle around himself, refusing to step out of it until Hashem sent rain to the parched land of Israel. This great tzadik arose from his long sleep and entered the house of study, where he soon discovered that he was counted as one of the greats, for he heard a scholar say: "Not since the time of Choni Hamaagal has there been anyone who had the Torah so lucidly in his mind." Choni tried to convince the people that he was the same Choni whom the scholar had praised, but to no avail. They acknowledged his great mastery of Torah but attributed to mental imbalance his claim to be the Choni who had disappeared seventy years earlier.
Choni felt himself an outcast from society and prayed to Hashem for death. The maxim "Give me friendship or give me death" comes to us from this plea to Hashem. Choni was suffering, not from any terminal illness, but from severe mental anguish and psychological pain. The Talmud does not look askance at Choni's refusal to continue his life of anguish. Indeed, the halachah equates psychological trauma with physiological pain.
Sotah 46b
The Talmud records a dramatic case in which "quality of life" was the determinant for the prolongation of life. The town of Luz was inhabited by great tzadikim who devoted themselves to making the techeles for the tzitzis. Because of their meritorious behavior, no one in the town died. The Angel of Death was not permitted to enter the town. When one of the righteous men of Luz grew old and determined that life had lost its savor and become burdensome, he would go outside the walls of the town to await natural death. The Talmudic sages made no negative comment, seeminly accepting loss of quality of life as adequate justification for this behavior.
Bava Metzia 84a
R. Yochonon became deranged because of the guilt he felt over the death of his brother-in-law and student, Resh Lakish. The sages successfully prayed for his death. Surely they had prayed for his recovery first, and only decided to pray for his death, since his quality of life was unacceptable, when their initial prayers were not answered.
Midrashic Sources
Several additional sources in the Midrash might be cited. The Midrash may be used a source for halachic decisions when it is unopposed by anything in the Talmud. Of particular interest are Midrash Tehillim Rabbah 8 and Bamidbar Rabbah 22:2. However, the foregoing citations from the Talmud should adequately present the principle that although life per se is of infinite worth, quality of life is, indeed, a halachic consideration.
Analysis
The preceding discussion illustrates the manner in which a pesak is developed. It is not an expression of personal inclination or an emotional response. Mastery of the entire Talmud is required to find the source material to answer a question that seems not to have been treated specifically in the halachah. Although most of the references have prayer as the "treatment modality," all of them, when combined with the record of the martyrdom of Rav Chanina, permitted Rav Moshe to conclude that a life of intractable pain should not be prolonged if cure is not possible.
However, a critical reservation must be emphasized. Quality of life decisions can only be made by the patient. A patient may decide to bear the pain rather than suffer the consequence of no treatment—forfeiture of his life. A very special burden is placed upon the caregivers when the patient is incompetent and cannot express his wishes. In his responsa, Rav Feinstein concluded that in the absence of any contradictory instructions from the patient when he was still competent, we must make what is known as a "best interest" decision. Loving family members, in cooperation with the physician and their rabbinic guide, must decide whether the patient's quality of life is so poor so as to justify withdrawal of all treatment other than hydration and nutrition.
To summarize Rav Moshe's position on the quality of life factor in cases of terminal illness: Halachah holds human life to be of infinite value and requires that all halachic restrictions be waived in order to save a human life. The physician is divinely licensed and obligated to heal, and patients are obliged to seek healing from competent physicians. Any deliberate hastening of death, even of a terminally ill patient, is an act of murder. The halachah never permits active euthanasia.
However, a physician is only obligated to heal when he has a medical treatment or modality to offer the patient. If the patient is dying from an incurable illness, and every therapy that could possibly be of help has been made available to no avail, the physician's role changes from that of a healer to that of one who cares deeply for the dying patient. Supportive care is required at this stage; food, water, good nursing, maximal psychological support. Rav Moshe often emphasized how important it is for the physician who can offer no cure to assiduously devote himself to easing the patient's burden. Pain, unrelieved by medication, makes life unbearable. Under such conditions it may even be proper to withhold further therapeutic protocols that may prolong life but not cure the patient. Experimental therapy, if available, is an option which a patient can accept or reject. This is especially so if the experimental therapy carries a significant risk so that its use may lead to an earlier death. The patient may decide to stay with conventional therapy even though no cure is expected, but the patient's present state may be prolonged.
Finally, it is the patient who must decide whether to assume the risk of experimental therapy or the no-risk, no-cure decision that conventional therapy offers.
The Anatomy of a Teshuvah: Medical Facts
During the late 1970s and much of the 1980s, vital-organ transplantation was in a state of flux, or more accurately, confusion. Since there was no consensus on how to determine whether neurological death had occurred and on what was acceptable mortality and morbidity postsurgically, a moratorium was declared, effectively stopping all cardiac transplants. The heart was the only vital organ that was being studied at that time. Liver, lung, and pancreas awaited further advances in transplantation surgery, advances that essentially occurred toward the very end of the 1980s and in the early 1990s.
Rav Feinstein studied the medical facts for almost two years. During this time, leading physicians in transplantation surgery came to his home to explain what they knew about two critical issues: (1) how to be certain that the donor was dead, and not merely in a deep coma; and (2) how to determine that the recipient had a better than 50 percent chance of long-term survival following transplantation. Many contributed to this understanding. Medical literature was replete with transplantation reports. These were translated for Rav Moshe, but the main contribution was made by people who came to his home, some spending long hours, even days, to present the best knowledge available at the time, knowledge that proved to be fully accurate as transplantation medicine developed.
The contributions of specific physicians should be noted, if only as an expression of appreciation for their selfless dedication to the task of helping the great posek clarify the factual issues so that a halachic ruling could be made. Dr. Ira Greifer, the Medical Director of the Kidney Foundation of America and Chairman of the Pediatric Department of Albert Einstein College of Medicine; the great, late transplant surgeon, Dr. Sam Kountz of Downstate Medical School; Dr. Irwin Krasner, a yeshiva-trained pediatric surgeon; the late Dr. Sam Korman, great oncologist; and many young, yeshiva-trained physicians who were invited to present, in their own words, their understanding of time of death, and of the burdens the recipient would have to assume since transplantation surgery substitutes one illness for another. Even successful transplantation results in lifelong "transplantation illness" requiring ongoing maintenance therapy with immuno-suppressive agents making the patient more prone to infections and neoplastic disease.
During the early years, the definition of brain-stem death, now universally understood, was confused with cerebral death or deep coma. Rav Feinstein emphasized in several responsa that a patient in deep coma is considered to be fully alive and any shortening of his life is an act of murder. The fact that such a patient would never recover sufficiently to be aware of his surroundings and to communicate, but would die without hope of cure, had no effect on his right to medical care, or rather on our obligation to provide medical care.
Rav Feinstein had, as his main criterion, the halachic rule that a patient who shows no independent movement and has lost the ability to breathe independently is considered to have died. The medical profession finally came to the same conclusion in the now universally accepted definition based upon the Harvard criteria, now known as the President's Commission Statement on Determination of Death. This statement reads as follows: "An individual who has sustained either irreversible cessation of circulation and respiratory function or irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards." This definition has been endorsed by the medical associations in every country where modern medicine is practiced.
Tests to determine the cessation of all brain function, including the brain stem, must also ascertain that there is no possibility that profound drug-induced or hypothermic nervous system depression is masquerading as brain death. The key test, however, is apnea, or the absence of breathing, as presently performed.
The diagnostic protocol to test for brain death does not call for the apnea test until the neurological responses indicate a high probability that the patient is dead. These neurological tests include pupillary reaction, eye movement, and motor response to stimulation, so as to establish that there is death of the midbrain, pontine death as well as medullary death. This state must be maintained for some specific time interval. In practice, most hospitals repeat the tests after twenty-four hours, ensuring that the patient has been in the state of brain death for at least that period. Halachah has yet to make any specific pronouncement as to how much time should pass before the patient can be removed from the ventilator and either be used as an organ donor or buried. Rav Feinstein was aware of the pathological observations in patients who had been declared brain dead. The study that was reported to him, printed in New York Academy of Science 315 (1978), gave the pathological findings twenty hours after the patient had been declared brain dead. These findings involved major morphological changes in the brain; liquification of parts of the brain, actual physical destruction visible to the naked eye. It thus would seem that a twenty-four-hour time interval is more than adequate to establish, with absolute certitude, that the brain is no longer functional.
Rav Feinstein emphasized the functional definition of brain death. When a patient's heart stops, the classical criterion for determining death, the cells of the heart are nevertheless still alive. It is the organ that is no longer functional. Likewise, in the case of brain-stem death, the circulation to the brain has been sufficiently disrupted so that the brain cannot perform its function of sending messages to the other parts of the body and, most critically, is not able to maintain the breathing activity essential for life. This loss of function is irreversible.
Interestingly, Rav Feinstein rejected the suggestion that in all cases a nuclide scan be done before declaring the patient brain-stem dead. In his responsum, Rav Feinstein suggested that this test, which determines by radiological methods that no blood is entering the brain, an absolute sign that the brain is no longer functioning and that lyses, or liquification, will ensue, should be reserved for cases of sudden traumatic death. Based upon his study of the medical facts, he was quite convinced that the neurological examination, including apnea, was more than adequate to establish the halachic validity of brain-stem death.
In cases of sudden traumatic death, Rav Feinstein intuitively felt that the patient might not be sufficiently stabilized for these tests to be as valid as they would be with a patient who is chronically ill and increasingly debilitated, ultimately leading to death. In a letter written in 1976 to the New York State Assembly, which was considering a bill in relation to the determination of time of death, Rav Feinstein wrote that the proposed legislation was "unacceptable because it did not specify that the sole criteria of death is the total cessation of spontaneous respiration" (for the full text, see p. 89).
Rav Feinstein objected to the emphasis on the brain rather than the respiratory function. He was concerned that testing should not stress a patient who was not brain dead but in the terminal stages known as goses. For this reason he ultimately concurred that the nuclide scan test may be of value, since it does not require that the patient be touched. The test consists of the injection through existing intravenous tubing of a small amount of an innocuous radioactive material which is used to highlight the circulatory system throughout the body. Failure of the radioactive material to enter the brain is absolute proof of cessation of circulation to the brain, or its severe impairment so that all neurological functioning ceases.
However, since the cessation of respiration is the sole criterion of halachic death, the apnea test must be performed. Under the universal protocol now practiced in all hospitals, the apnea test is done in such a way as to minimize any possibility that the patient will be stressed. Advances in medical technology since Rav Moshe's death provide additional methods for determining brain death without stressing the patient. PET technology, as well as other refinements which now can measure whether the brain cells are utilizing glucose or not, may in the future prove to be the very best method of determining brain death. Failure to metabolize glucose is absolute proof that the cells have died. Glucose utilization can be localized; when the brain stem is shown not to be utilizing glucose, and, in addition, the nuclide scan shows that there is no discernible amount of blood reaching that area, there would be no shadow of doubt that the brain cells so studied are no longer viable.
When Rav Feinstein's responsa on brain-stem death were disseminated to the Torah-observing public, some readers raised objections to this ruling. The objections fall into two categories. Those in the first category derived from failure to understand the medical and halachic facts; those in the second approach the subject with a bias that is still hard to understand. This bias led to statement that perverted the truth. Chief among the detractors in this category are Dr. Abraham Abraham of Shaare Tzedek Hospital in Jerusalem and Rav J. David Bleich of Yeshiva University, as well as Rav Moshe Sherer and Mr. David Zweibel of the Agudas Israel of America. Under their instruction, the Jewish Observer, the house organ of the Agudah, published much erroneous material on this subject despite efforts made to present them with the true facts. Full documentation for this is presented on pp. 180–182.
Hagaon Rav Shlomo Zalman Auerbach, זצ"ל, who has clearly stated his full concurrence with the brain-stem-death definition of halachic death, was quoted both by Dr. Abraham and the Agudah as in opposition. This misrepresentation seriously calls into question the validity of other statements made by Dr. Abraham and the Agudah in the name of the Gaon. To facilitate the understanding of these documents, I would like to point out the critical errors on the part of those who objected to Rav Feinstein's ruling on brain death.
Dr. Abraham, despite many efforts to dissuade him, suggested in print that Rav Feinstein's responsum on brain death must be understood as brain death in addition to cardiac death. In other words, Rav Feinstein, alone in the halachic world, would have required that after a patient is declared dead on the basis of classic circulation criteria (i.e., the cessation of heartbeat), halachic death would also require that the brain die. Such a reading of Rav Feinstein's responsum can only be understood as an unfortunate misreading.
Dr. Abraham is a physician and knows very well that you cannot do a bloodflow nuclide scan when the heart has stopped. Yet, in the responsum, Rav Feinstein says that the nuclide scan should be used in cases of sudden traumatic death. Dr. Abraham's insistence on publishing this reading of Rav Feinstein's responsum, despite the efforts of many of his colleagues to point out this error, is most regrettable.
Rav J. D. Bleich misinterprets a responsum in which Rav Feinstein rejects brain-death criteria. However, that responsum clearly states that the case at hand is of a patient who can breathe independently. Such a patient is not brain dead, but cerebral dead or in a deep coma, and no one denies that such a patient is not dead—neither according to halachah nor according to any secular medical system known today. Similarly, he claims that the Chief Rabbinate of Israel, in their ruling which approved brain-stem death as a basis for allowing a cardiac-transplant program to be initiated in Israel, "never discussed brain death." A reading of the Chief Rabbinate's ruling (see pp. 174–179) shows that one-quarter of the responsum of the Chief Rabbinate was devoted to defining brain death and establishing it as a criterion for vital-organ transplants.
The role of the Agudas Israel remains an enigma. The letter on page 90 to Mr. Miller of the New York State Assembly was drafted by Rav Moshe Sherer of Agudas Israel. He was fully aware of Rav Feinstein's position on respiratory death but saw fit to attack this ruling, not by questioning the halachic or medical facts on which it was based, but by denying that Rav Feinstein ever made such a ruling. This, he persists in doing to this day, despite the ancillary material that has been published since then and made available to him, such as the letter to Dr. Bondi, the letter of Rav Moshe's son, Rav Hagaon David Feinstein, שליט"א, as well as the many letters that the Agudah received pointing out their misunderstanding of basic issues, both halachic and medical. An example of confusion on this matter is evidenced by the publication by Rav Sherer of a "diary" record of a conversation he had with Rav Moshe. The "diary" record, reported by Rav Sherer in the Jewish Observer of Cheshvan 5752 (vol. 24, no. 7), pp. 21–22, confuses brain-stem death with brain-stem confirmatory testing, or the nuclide scan. It betrays a misunderstanding of Rav Feinstein's statement that the nuclide scan is only a chumra (additional stringency), thus casting doubt on Rav Feinstein's position on brain death. The brain nuclide scan is not done until after brain-stem death has been determined by neurological criteria, including the apnea test to determine total cessation of respiratory activity. Rav Feinstein's comment on the nuclide scan was that it cannot substitute for the apnea test and is not necessary except as a chumra or in search for objective radiological evidence of cessation of circulation to the base of the brain. Rav Feinstein did not think this necessary except in cases of sudden traumatic death, as noted previously.
Some of the opposition to Rav Feinstein's ruling on brain-stem death, as well as to other rulings that will be discussed in subsequent volumes, raises an issue of integrity that never before has been a factor in evaluating the writings of the Torah community. As noted above, Rav Feinstein viewed willful perversion of the truths of Hashem's Torah as tantamount to idolatry. One must forfeit his life rather than attribute a false statement to Hashem's Torah. No desire for political correctness, no concern for the impact on the laity or the medical profession or the legal profession, justifies perverting the halachah. If there is need for additional precautions to make sure that the donor is really dead, or that that the recipient can really benefit from the transplant, then these issues must be addressed directly without perverting the halachic basis for decision-making.
Throughout our halachic literature, the law was presented and then the rabbis suggested fences around the law for reasons which they understood to be necessary. Whether we have the authority to make such gezeiros or takanos today is highly questionable, but surely the educational role of the rabbinate should not be underestimated. For example, it may be acceptable in all quarters to institute a twenty-four-hour or even thirty-six-hour or forty-eight-hour wait between the initial brain-stem death test and a subsequent confirmatory testing. During this prolonged period the anatomical destruction of the brain would be quite evident, and this might well lead to greater confidence on the part of a laity disturbed by horror stories which have no basis in fact and, therefore, reluctant to sign donor cards or to permit the transplantation of organs from a loved one who has just died.
Rav Feinstein's responsum on brain death makes possible the saving of lives. Those who oppose his ruling for reasons that are suspect must be viewed as individuals who are preventing the saving of human life, human life that is of infinite worth.